The facts leading up to this application briefly stated are that the applicant Hafiz Muhammad Husain purchased quarter No. 148/37-A, Landhi Colony, Karachi, from its allottee Abbas Khan, the respondent No. 4 son of respondent No. 2 for Rs. 7,000 through agreement dated 24-8-1966. Abbas Khan banded over all the documents of title as well as physical possession of the quarter to the applicant. The applicant invested money and constructed some shops and let them out on rent to various tenants. Since the quarter in dispute was adjoining to quarter No. 139/37-A belonging to the applicant, the applicant used the aforesaid quarter in dispute as a place for tethering his buffaloes.
Since the value of the quarter increased. Abbas Khan wanted to occupy the quarter and consequently on 13-10-1968 he along with other respondents trespassed into the quarter No. 148/37-A. The applicant registered a case against them under section 448, P. P. C. Simultaneously Landbi Police also initiated proceedings under section 145, Cr. P. C. As there was likelihood of breach of peace and the S.D.M., Landhi on the basis of the police report passed a preliminary order under section 145, Cr.P.C., attached the quarter and ordered sealing of the same. Abbas Khan respondent No. 4 filed a suit No. 1060/68 for permanent injunction against the applicant and others praying for permanently restraining the applicant and his co-defendants in the suit .From selling, dis--posing of or alienating in any manner the quarter in dispute or delivering it's possession to any third person or committing any overt act of commission or omission affecting the title of the respondent No. 4 Abbas Khan. In the meantime the applicant filed miscellaneous application No. 300 of 1973 under section 561-A, Cr. P. C. In the High Court challenging the proceedings filed under section 145, 'r. P. C. The High Court dismissed this application. Sub--sequently, the learned Civil Judge also dismissed the suit filed by respondent No. 4, Abbas Khan on 27-2-1975. Thereafter the applicant filed an applica--tion requesting the Court of the learned S. D. M. To drop the proceedings under section 145, Cr. P. C. As dispute was settled by the Civil Court. Since the learned S. D. M. Failed to pass any order in that respect he has filed this application under section 561-A for quashment of proceedings pending under section 145, Cr. P. C.
2. I have heard Mr. Ansar Husain the learned counsel for the applicant and Messrs M. Shah and Zaffar for the respondents, and Mr. Ali Bux Lagbari for the State. It has been contended on behalf of applicant by his learned counsel that since there exists no likelihood of breach of peace and that he is in possession of the quarter in dispute there is no legal justification of continuance of proceedings under section 145, Cr. P. C. On behalf of the respondents, it has been contended by their learned counsel that the material available on the record would clearly show that there exists a dispute likely to cause the breach of peace between the parties and that on the admitted facts of the applicant's own case he is out of possession and that the title over the property has not been determined by the Civil Court in the appro--priate proceedings and, therefore, there exists no legal justification for quash--ment of the proceedings initiated under section 145, Cr. P. C.
3. On the admitted facts of the case, the learned S. D. M. Had not yet held any inquiry into the subject-matter of the dispute between the parties as warranted by the provisions of section 145, Cr.
P. C. When the applicant filed an application under section 561-A, Cr. P. C. No. 300 of 1973 which was dismissed by the High Court on the ground that jurisdiction of the Criminal Court was not ousted simply because civil litigation bad been pending between the parties. Subsequently the suit filed by Abbas Khan, respondent No. 4 for permanent injunction in the Civil Court was dismissed on 27- 2-1975, with the result that the applicant filed this application under section 561-A, Cr. P. C. For quashment of the 145, Cr. P. C. Proceedings, mainly contending that the Civil Court has determined the title of the parties over the subject-matter of the dispute and therefore, there exists no likelihood of breach of peace. What I find from the material available on the record is that the respondent No. 4 filed an appeal against the judgment of the civil Court dismissing his suit and the appeal was allowed and the judgment and decree passed by the civil Court was set aside. The Civil Revision No. 72/80 was filed against the judgment of the appellate Court but it was also dismissed, however, with the following observations :- "I cannot however refrain .From observing that circumstances of the case show that Hafiz Muhammad Husain had entered into possession of the house under cover of his claim but since issue No. 5 has been decided even by the appellate Court in favour of the present applicant, therefore, they are hardly aggrieved against the order of the appellate Court as their possession has clearly being held as not to have been obtained by fraud. Their possession, therefore, remains undisturbed."
In view of the above background there is nothing available to show that there exists no further likelihood of breach of peace between the parties on account of dispute over the property in question. Therefore, there appears no force in the contention raised on behalf of the applicant in that respect.
4. So far the second contention to the effect that the applicant is in fact in possession of the quarter in dispute and is adjudged as such in view of the above-mentioned observations of the High Court in the order .Passed in Civil Revision No. 72/80 filed by the applicant, there exists no justification for continuance of 145 Cr. P. C. Proceedings, and, therefore, they should be quashed, is equally without force for the simple reason that on the admitted facts of the applicant's case the respondents took forcible possession of the quarter on 13-10-1968 with the result that he filed complaint against them under section 448, P. P. C. And Landhi police simultaneously initiated 145, Cf. P. C. Proceedings in the matter in the Court of S. D. M. Landhi and the learned S. D. M. vide his order dated 18-10-1968 sealed the quarter finding that both the parties were in possession of the said quarter. It would be useful to reproduce clauses (i) and (iv) of section 145, Cr. P. C. Which read as under :- "145.-(1) Whenever a District Magistrate; Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the ground of his being so satisfied, and requiring the parties concern--ed in such dispute to at end his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute, and------------;
(4) The Magistrate shall then, without reference to the merits of the claim of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject; Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date, Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section."
The above-mentioned provisions would make it clear that the criminal Court's jurisdiction under section 145, Cr. P. C. Is purely of emergent nature to be invoked only in case of emergency with a view (1) to prevent breach of peace and (2) to prevent and put back into possession the party forcibly ejected within a period of two months next before the date of preliminary order passed by the Magistrate. In the circumstances, therefore reliance on the observations of the High Court in the revision application by the applicant's Advocate as stated above is absolutely misconceived for the reason that the applicant's own case would clearly show that he was forcibly dispossessed by the respondents on 13-10-1968 with the result that he was compelled to file complaint under section 448, P. P. C. Against respondent No. 4 and others and the police had to initiate 145, Cr. P. C.
Proceedings in the matter apprehending a likelihood of breach of peace. The reliance on the casual observations of the High Court that the applicant Hafiz Muhammad Husain was in undisturbed possession right up from the beginning, therefore, are of no help to tile case of the applicant. On the admitted facts of the case, the quarter was attached and is under seal by an order of the learned S. D. M. The contention that there is a passage from the side of the applicant's quarter which is being used by the applicant for the purpose of using the quarter in dispute for tethering his buffaloes, in the circumstances of the case is also of no avail to the applicant's case as this contention has not so far been considered by the Court of the learned S. D. M. Who has jurisdiction of inquiring into the matter of such possession and it's bona fides in the circum-- stances of the case. What I find that the learned S. D. M. Did not record the evidence of the parties inquiring into the question of possession of the property in dispute at the relevant time as required by the provisions of sec--tion 145, Cr. P. C. When the first application under section 561-A, Cr. P. C.
Was filed and which was dismissed and even when this second application under section 561-A, Cr. P. C. Was filed. In fact in the circumstances of the present case, the lower Court was not allowed to exercise its jurisdiction of inquiring into the question of possession of the quarter in dispute at the relevant time. What I further find that the rights of the parties as alleged were never determined by the Civil Court in an appropriate declaratory suit and there was no justification to come in this application for quashment of the proceedings even on that ground as it would be clear from the orders passed by the learned Civil Judge, the Appellate Court and even by the High Court in the Revision application No. 72/80. I, therefore, find no force in the contention to the effect that the applicant is in undisturbed possession of the quarter in question and that the civil Court has determined the rights of the parties in an appropriate civil proceedings in respect of the property in dispute. Accordingly, none of the contentions raised on behalf of, the applicant has got any substance.
5. The contentions raised on behalf of the respondents in the circum--stances to the effect that there exists dispute over the property in question which is likely to result in a breach of peace and that the Court of the learned S. D. M. Has not been allowed to decide the question of possession of the parties to the property any has not been allowed to exercise the jurisdiction vested in it within the meaning of the provisions of section 145, Cr. P. C. On the basis of the material on the record, are not without force. The Court of the learned S. D. M. Therefore, should be allowed to exercise the jurisdiction vested in it within the meaning of section 145, Cr. P. C. And he should dispose of the proceeding as expeditiously as possible.
6. This application filed under section 561-A, Cr. P. C. Is, accordingly, dismissed.